Republicans struggle to find ways to make domestic spying legal

A group of Republican senators failed to reach an agreement Tuesday on legislation that would write the Bush administration’s controversial eavesdropping program into law.

Senate Majority Leader Bill Frist, R-Tenn., said he formed the “informal working group” to craft legislation that will strengthen its legal basis. More than a half dozen senators left an hourlong meeting offering few details about progress.

The negotiations put Republicans in a politically tricky spot. The White House has argued for more than two months that President Bush had all the authority he needed to order the surveillance of international communications of U.S. residents without first seeking a court’s approval. The administration has said one party to the call had suspected ties to al-Qaida.

One possible proposal, advanced by Sen. Mike DeWine, R-Ohio, would allow the government to monitor any electronic communication _ such as a telephone call or e-mail _ that involves a member of a terrorist organization designated by the president.

DeWine said the National Security Agency could listen for a period of time _ perhaps 45 or 90 days _ before having to go to the secretive Foreign Intelligence Surveillance Court to get a warrant. It’s that court that critics of Bush’s program have said he should have been using all along.

But Senate Judiciary Chairman Arlen Specter, R-Pa., wants the intelligence court to evaluate whether the program is constitutional in regular 45-day reviews. The court also would have to certify the government is collecting information only when there is probable cause.

“We are making progress,” DeWine said. But “we’ve got a ways to go.”

It’s unclear if the House will act. Jamal Ware, spokesman for House Intelligence Chairman Peter Hoekstra, R-Mich., said the congressman is not working to pass similar legislation in the House and “has been very consistent that the president has the necessary legal authority.”

The Senate meeting came hours after the Senate Judiciary Committee held its second hearing on the president’s wartime powers and the NSA program.

Taking a middle ground, former CIA Director James Woolsey said the warrantless eavesdropping is appropriate when U.S. intelligence officials are trying to identify terrorists based on their phone calls or other communications. But he said once suspects are identified, then court-approved surveillance is appropriate.

Doug Kmiec, a Pepperdine University law professor, said claims by lawmakers that Bush acted illegally by authorizing the warrantless surveillance were “partisan, unnecessary, unfortunate and unwise.”

“There is a genuine argument on both sides,” Kmiec said, adding that he generally supports Specter’s legislation imposing modest limits on such surveillance.

Bruce Fein, a constitutional expert, was far more critical of Bush’s executive order. He said the legal theory justifying the eavesdropping “would equally justify mail-openings, burglaries, torture or internment camps _ all in the name of gathering foreign intelligence.”

“Unless rebuked, it will lie around like a loaded weapon, ready to be used by an incumbent who claims an urgent need,” Fein said.

Fein urged Congress to wield its power to set budgets to prevent such eavesdropping by the NSA, and said the president should more broadly explain why existing powers under the Foreign Intelligence Surveillance Act were inadequate.


Associated Press writers Ted Bridis and Liz Sidoti contributed to this report.

© 2006 The Associated Press